172 F.

3d 122

Zasha ZAMBRANA-MARRERO, et al., Plaintiffs, Appellants,

v.
Carlos SUAREZ-CRUZ, et al., Defendants, Appellees.
No. 98-1601.

United States Court of Appeals,

First Circuit.
Heard March 4, 1999.
Decided April 21, 1999.

Judith Berkan and Federico Lora Lopez for appellants.

John F. Nevares with whom Gustavo A. Gelpi, John M. Garcia and Isabel
Abislaiman for appellees.
Before TORRUELLA, Chief Judge, COFFIN and CYR, Senior Circuit
Judges.
COFFIN, Senior Circuit Judge.

This case requires us to examine once again the often difficult concept of
"under color of state law" as it relates to the death of a private individual at the
hands of police officers. Plaintiffs, the widow and four children of Rembert
Zambrana-Rodriguez ("Zambrana"), filed this lawsuit seeking damages under
42 U.S.C. 1983 and Puerto Rico law after Zambrana died from injuries he
suffered when two police officers intervened in a fight at a bar. The district
court granted summary judgment for the defendants and dismissed the pendent
state law claims, on the ground that the officers' conduct constituted private
violence rather than violence "under color of state law" as required for liability
under section 1983. Our review of the record and case law persuades us that the
issue should have gone to the jury. Accordingly, we vacate the judgment and
remand for further proceedings.

I. Background
Consistent with our obligation in reviewing a grant of summary judgment, we
2

consider the facts in the light most favorable to the plaintiffs, the non-moving
parties, and also draw all reasonable inferences in their favor. See BarretoRivera v. Medina-Vargas, 168 F.3d 42, 44 (lst Cir.1999).

On the night of June 10, 1993, Zambrana was socializing at Freddy's Pub in
Carolina, Puerto Rico, when he insulted the girlfriend of the bar's owner,
Freddie Casablanca. A verbal exchange between Zambrana and Casablanca
quickly escalated into a physical fight. Other patrons in the crowded bar
gathered around to watch, and some of them attempted to separate the two men.

Among those at the bar at the time were two police officers, Carlos SuarezCruz ("Suarez") and Angel Rolon-Mercado ("Rolon"), who had been playing
pool in an area somewhat removed from the site of the fight. The officers had
been together since shortly after ending their shift earlier that evening and had
attended a birthday party for another officer before driving in Suarez's personal
car to the pub. The officers were partially in uniform, both wearing their policeissue pants and boots. Rolon also was wearing a t-shirt identified with the
letters "DOT," the Spanish acronym for the Tactical Operations Division of the
police department. Both also were carrying their police-issue weapons, pursuant
to departmental regulations.1

Rolon encountered the fight when he walked over to the bar to get more beer.
He returned initially to Suarez to tell him what was going on, and then went
back to where the fight was taking place, with Suarez following. At this point,
Casablanca and Zambrana were on the floor; Zambrana was pulling
Casablanca's neck chain, which was cutting the back of his neck and "choking"
him, and Casablanca was trying to free himself. When the two fighters rose to
their feet, Rolon and Suarez entered the fray: Suarez grabbed Zambrana by
putting his arm around Zambrana's neck, forcing him to let go of Casablanca.
Other bystanders assisted Casablanca, who went to the bathroom to clean up.
Although Casablanca was no longer involved, the fracas continued. As
Zambrana attempted to free himself from Suarez's hold, Rolon began hitting
Zambrana with all available objects, including a pool cue and billiard ball, his
boots and his service revolver.

By all accounts, Rolon's attack on Zambrana was excessively vicious. 2 Suarez

sent Rolon to retrieve handcuffs from the officers' car, and Suarez managed to
place them on Zambrana by sitting on top of him and pulling his arms behind
his back. One witness stated that Rolon told those gathered around the scene in
the bar not to intervene because he and Suarez were police officers. 3 After
Zambrana was handcuffed, Casablanca told Suarez to take the fight outside.

Once outside, Rolon searched Zambrana and seized a small packet of cocaine
from him. The officers also took out his wallet and kept his ATM card.4 Suarez
and Rolon left the scene a short time later, leaving Zambrana lying on the
ground, seriously injured. Zambrana was taken home and, early the following
morning, admitted to the hospital. He died two days later of kidney failure due
to bodily trauma.

Plaintiffs filed a complaint under 42 U.S.C. 1983 against Suarez and various
of his supervisors,5 alleging that Zambrana's civil and constitutional rights had
been violated by the officers' conduct. Additional claims were asserted under
Puerto Rico law. The defendants filed various motions to dismiss and for
summary judgment, and on March 31, 1998, the district court granted summary
judgment for all defendants based on its conclusion that plaintiffs had offered
insufficient evidence to prove that Suarez and Rolon acted "under color of law"
as required to establish a violation of section 1983. The court dismissed the
pendent state law claims. This appeal followed.

II. Discussion
A. Summary Judgment Standard
9

A district court may grant summary judgment only "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). Our review is de novo, and, as noted earlier, see supra at
123, we evaluate the record in the light most favorable to the non-moving party,
in this case the plaintiffs. Summary judgment is appropriate only if the
evidence taken in that light "fails to yield a trialworthy issue as to some material
fact." Martinez v. Colon, 54 F.3d 980, 983-84 (lst Cir.1995). Otherwise stated,
our task is to determine "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

10

In this specific case, that obligation is to decide whether a jury could find that
Suarez and Rolon acted "under color of state law" when they intervened in
Zambrana's fight with Casablanca and administered the blows that led to
Zambrana's death.
B. Under Color of State Law6

11

Establishing that the defendant acted "under color of state law" is one of two
essential requirements for an action under section 1983, which imposes liability
only for conduct attributable to the state.7 In distinguishing private action from
state action, the general inquiry is whether "a state actor's conduct occurs in the
course of performing an actual or apparent duty of his office, or ... is such that
the actor could not have behaved in that way but for the authority of his office."
Martinez, 54 F.3d at 986. The concept can be particularly elusive when applied
to police conduct, as we have recognized in three recent cases. See BarretoRivera, 168 F.3d at 45-46; Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445,
448-50 (lst Cir.1997); Martinez, 54 F.3d at 986-87. We quote from BarretoRivera:

12 single, easily determinable factor will control whether a police officer was acting
No
under state law. While certain factors will certainly be relevant--for example, a
police officer's garb, an officer's duty status, the officer's use of a service revolver,
and the location of the incident--these factors must not be assessed mechanically.
13

168 F.3d at 45 (citation omitted).

14

Resolving the "under color of law" question therefore requires an assessment of

the totality of the circumstances, in which we must consider both " 'the nature
and circumstances of the officer's conduct and the relationship of that conduct
to the performance of his official duties.' " Barreto-Rivera, 168 F.3d at 46
(quoting Martinez, 54 F.3d at 986-87); see also Parrilla-Burgos, 108 F.3d at
449. The determination does not turn on "whether an officer stays strictly
within the line of duty, or oversteps it." Martinez, 54 F.3d at 986. An officer
who abuses or exceeds his recognized authority may be acting under color of
law if, "at the time in question, [he] purposes to act in an official capacity or to
exercise official responsibilities pursuant to state law." Id. Although the
subjective reactions of the victim may have some relevance, "the primary focus
of the color of law analysis must be on the conduct of the police officer,"
Barreto-Rivera, 168 F.3d at 47, and whether it "related in some meaningful
way either to the officer's governmental status or to the performance of his
duties," Martinez, 54 F.3d at 987.

15

In both Martinez and Parrilla-Burgos, the application of these principles led us

to uphold district court summary judgment rulings that the plaintiffs had failed
to establish that the defendant police officers acted "under color of state law."
In Martinez, an on-shift police officer accidentally shot and maimed a fellow
off-shift officer after repeatedly harassing that officer in the station house.
Although he was in uniform and armed with his service revolver, the harassing
officer never asserted his authority as a police officer. We concluded that he

"was bent on a singularly personal frolic: tormenting an acquaintance. Though

on duty and in uniform, [the officer's] status as a police officer simply did not
enter into his benighted harassment of his fellow officer," Martinez, 54 F.3d at
987 (footnote omitted).
16

The facts in Parrilla-Burgos more closely resemble those before us. In that case,
an off-shift police officer using his service revolver fatally shot a fellow bar
patron. The officer, who was on medical leave and not in his uniform, had
encountered the decedent at the bar, telling him: "I'll look at you whichever
way I please, because I am a cop." See 108 F.3d at 447. The exchange
escalated and the officer repeated his claim to special status: "I look at anybody
I want, because I'm a cop. Anybody I decide I want to look at dirty, I look at
them dirty." See id. The officer apparently displayed his identification to the
crowd gathered around, telling the onlookers that he was there to keep the
peace. That statement stopped the fracas briefly, but it soon resumed, and the
decedent challenged the officer to step outside without his gun. The officer
responded, "I don't need a gun to fight you," but he nevertheless took the gun
with him when the two men left the bar. Moments into the fight, the officer
pulled out his weapon and fired the six shots that killed the decedent.

17

We concluded that, despite the officer's comment that he was in the bar to keep
peace and his showing of police identification, the officer's conduct
demonstrated that he was acting in a private capacity. See id. at 450. We
observed that statements such as those by the officer claiming a special
privilege to "look dirty" at an individual by virtue of his position as a police
officer "do not constitute action under color or pretense of state law if the
asserted privilege lies clearly outside the scope of their official duties." Id. at
451. Weighing heavily in our decision was that the final exchange between the
officer and the decedent before they left the bar amounted to an invitation and
acceptance to engage in a private brawl, after which the officer made no further
pretense of official action. See Barreto-Rivera, 168 F.3d at 46; Parrilla-Burgos,
108 F.3d at 450-51.

18

We found the pre-trial evidence less decisive in Barreto-Rivera. The episode

there began when the defendant officer, driving in his cruiser, followed the
decedent as he drove home from a local store. When they reached the house,
the officer demanded the decedent's license and registration. A verbal exchange
occurred outside the home, during which the decedent accused the officer of
making a pass at his wife. The two men exchanged punches and the officer
repeatedly hit the decedent with his night stick before the pair was separated
and the decedent went into the house. At that point, two of the decedent's
family members approached the officer and were pushed and shoved by him.

Seeing the conflict, the decedent came out of the house, picked up a piece of
plastic tube from his yard, and approached the officer. Although several
witnesses took the tubing from the decedent, the officer radioed for back-up
help, stating: "10-50, I have been attacked. Hurry up, this guy is acting tough
and I am going to have to shoot him." 168 F.3d at 44. The decedent told the
officer to drop his gun and fight with his fists. The officer responded by telling
the decedent not to come any closer or he would shoot. The decedent continued
to approach, and the officer fatally shot him.
19

The district court in Barreto-Rivera relied on deposition testimony to conclude

that the officer's encounter with the decedent stemmed from a "love feud" and
that his behavior and the shooting consequently were acts of a personal nature.
See id. at 47. The district court equated the showdown to the "private brawl" in
Parrilla-Burgos, observing that the officer's call for back up on his police radio
in the final moments of the confrontation--a seemingly official act--might have
been designed to set up a claim of self-defense for his plan to shoot the
decedent. The court found it significant that the decedent's "actions were 'not
the acts of a person heeding another's status as a policeman; instead, they
reflect [the decedent's] total disregard for [the officer's] official position.' " Id.

20

On review, however, we held that the facts and possible inferences did not lead
inexorably to a finding of private conduct. We discounted the decedent's
subjective reactions to the confrontation and noted numerous indicators of
official action: the officer was on duty, in uniform, patrolling in his cruiser, and
he relied on his authority as a police officer to stop the decedent and demand
his license and registration. We further observed that the officer used his
nightstick--"a police-issued weapon and a potent symbol of police authority"-against the decedent, that the officer summoned help on his police radio, and
ultimately shot and killed the decedent with his service revolver. Id. at 48. In
such circumstances, we were "unwilling to say that [the officer's] conduct was
so clearly personal in nature that a jury could reach only one outcome." Id. We
therefore vacated the judgment for defendants.
C. Applying the Standard

21

In its assessment of the circumstances before us, the district court highlighted
testimony that Rolon had "excitedly" joined in the fight, which indicated to the
court a desire to participate rather than to establish order. The court also pointed
to Rolon's "brutal and random attack of Zambrana ... and his decision to steal
his wallet." At the same time, the court downplayed the officers' use of official
measures, particularly the handcuffs and search of Zambrana, observing that
these techniques were not used for the usual purposes of facilitating an arrest or

checking for weapons or contraband. In the court's view, the totality of the
circumstances showed that "[m]ore likely than not, their conduct consisted of
private violence engaged in by two individuals who happened to work for the
state...."
22

Though we acknowledge that this is one plausible reading of the evidence, we

are unpersuaded that it is the only one. We believe that the record contains
sufficient indicia of official police action that a jury reviewing the "nature and
circumstances" of Suarez and Rolon's conduct and the "relationship of that
conduct to the performance of [their] official duties," see Martinez, 54 F.3d at
986, could conclude that they acted under color of state law, albeit in clear
abuse of their authority.

23

We begin our discussion of the evidence by noting a significant difference

between the circumstances here and those in all three of the earlier cases
discussed above. In Martinez, Parrilla-Burgos and Barreto-Rivera, the injury
and deaths arose out of incidents in which the police officers were original
participants. Here, by contrast, Rolon and Suarez entered an already developed
dispute between two private individuals, and their action in helping to pull
Zambrana and Casablanca apart was consistent with the responsibility of police
officers to defuse violent situations. That Rolon's intervention quickly turned
brutal and inappropriate does not negate the possibility that this was an official
action. Nor does the testimony noted by the district court describing Rolon as
"excitedly" entering the fight. The actual testimony did not, in fact, describe
Rolon as "excited." Suarez was asked in his deposition whether Rolon became
involved "because of the excitement," and he answered "yes." Read in a light
most favorable to plaintiffs, Suarez's testimony may simply have indicated that
the commotion caused by the fight prompted Rolon to step in.

24

The evidence contained a number of additional indicators of official action:

Rolon's telling onlookers to stay away because he and Suarez were police
officers; the use of handcuffs to subdue Zambrana8 ; the search of Zambrana and
seizure of cocaine; and a statement by Suarez to a friend of Zambrana's that he
planned to pursue drug and possibly other charges against Zambrana.9
Moreover, unlike in Parrilla-Burgos, where the officer's assertion of special
status occurred only in the opening minutes of the episode, the indicia of
official conduct here spanned the entire interaction, ending with the search and
seizure.

25

Taken together, these circumstances permit a judgment that Suarez and Rolon
took control of the Zambrana/Casablanca fight in furtherance of their duty as
police officers and for the purpose of ending the disturbance; that they did so in

part through Rolon's abuse of his police power and in part through the use of a
traditional law enforcement tool, the handcuffs; and that the search of
Zambrana was conducted under the apparent authority of the officers' official
status. Even if Suarez and Rolon's purpose in searching Zambrana was to steal
whatever they could from him, we believe a jury could conclude that their
actions were taken under color of law because they were enabled by their status
as police officers. As noted earlier, an individual's conduct is attributable to the
state not only if it arises from the performance of actual duties but also if it
occurs in the course of performing an apparent duty of his office, or "is such
that the actor could not have behaved in that way but for the authority of his
office." Martinez, 54 F.3d at 986. Cf. Stengel v. Belcher, 522 F.2d 438, 440-41
(6th Cir.1975). 10
26

In sum, we think there was enough here to warrant putting the question to the
jury. Indeed, the district court, evidently recognizing that the evidence tipped in
both directions, phrased its conclusions in language undermining its conclusion
that summary judgment was appropriate; rather than stating that the evidence
could lead to but one result, the court observed that "[m]ost probably, Rolon
and Suarez's motive was purely criminal in nature,"11 and "[m]ore likely than
not," their conduct consisted of private violence. A conclusion that the
dispositive fact is more likely than not is inconsistent with the standard for
summary judgment.

27

As in Barreto-Rivera, the court appears to have improperly engaged in its own

weighing of the evidence, failing to give the plaintiffs the benefit of all
inferences to be drawn from the available facts. See 168 F.3d at 47. We
therefore vacate its entry of summary judgment and remand for further
proceedings on plaintiffs' section 1983 claim.
D. Pendent Claims

28

The district court declined to exercise jurisdiction over plaintiffs' pendent

Commonwealth law claims because of its dismissal of the section 1983 claim.
In light of our disposition on the federal civil rights claim, we vacate dismissal
of the pendent claims and remand those as well for further attention by the
district court.

29

Vacated and remanded.

Puerto Rico police department policy states that officers are on duty twenty-

four hours a day, even when they are not working a scheduled shift, and must
carry identification and a service revolver at all times. Parrilla-Burgos v.
Hernandez-Rivera, 108 F.3d 445, 446 (lst Cir.1997)
2

There is some discrepancy regarding whether Suarez also struck Zambrana.

Even if Suarez was not involved in the physical attack, however, he could be
held responsible for Zambrana's death. See Martinez v. Colon, 54 F.3d 980,
985 (lst Cir.1995) (An officer " 'who is present at the scene ... and who fails to
take reasonable steps to protect the victim of another officer's use of excessive
force can be held liable under section 1983 for his nonfeasance' " if he had a "
'realistic opportunity' " to prevent the other officer's actions.) (quoting
Gaudreault v. Municipality of Salem, 923 F.2d 203, 207 n. 3 (lst Cir.1990))

This statement was contained in a sworn declaration given by Luz Menchaca as

part of an investigation conducted by the Bureau of Special Investigations of
the Puerto Rico Department of Justice. The declaration, which was submitted
by plaintiffs in support of their opposition to defendants' motions to dismiss,
appears only in Spanish in the record. Because all of the parties agree on the
substance of this particular statement, we include it in our factual summary. We
have largely ignored the content of the other declarations from the same
investigation, however, because they, too, are provided only in Spanish

Later that night, Suarez attempted to extract money from an ATM machine
using Zambrana's card and, when he was unsuccessful, he shot at the machine

Rolon killed his wife and then committed suicide about a month after the
incident with Zambrana

Puerto Rico is considered a "state" within the meaning of 42 U.S.C. 1983 and
the term "state law" therefore includes Puerto Rico law. Barreto-Rivera v.
Medina-Vargas, 168 F.3d 42, 45 (lst Cir.1999)

The other is that the conduct "worked a denial of rights secured by the
Constitution or laws of the United States." Martinez, 54 F.3d at 984. Because
the district court dismissed the case based solely on the "under color of law"
issue, we have no occasion to consider any other aspect of section 1983 liability
or possible defenses

Although the district court stated that "[t]he context in which the handcuffs
were used in this case was not the context typical of a governmental
intervention (to facilitate an arrest)," Suarez stated at one point in his deposition
that he was thinking of arresting Zambrana before he handcuffed him. Asked if
he restrained Zambrana that way "because you were a policeman who had the
authority to handcuff somebody," he answered, "[a]t that moment, yes." He

then was asked: "And you had done this because you had observed him doing
something that you understood to be illegal conduct?" He answered, "Well, the
fight, up to that moment."
At another point in the deposition, however, Suarez stated that, up to the time
he handcuffed Zambrana, he had no intention of arresting him and thought
about doing so only after the packet of cocaine was found. This direct
contradiction must, of course, be viewed in the light most favorable to
plaintiffs.
9

In his deposition, Suarez reported that he told a friend of Zambrana's that he

"was going to call a patrol car in order to submit ... charges for the drug and the
fight and consult with the prosecutor." The friend then asked Suarez to let him
go "as a favor," and Suarez agreed

10

Stengel involved an off-duty police officer who was at a bar with friends when
he intervened in a dispute between other patrons. The defendant officer was not
in uniform and he did not identify himself as a police officer, but, as required by
department regulations, he had with him his service revolver and a can of mace.
During the incident, the officer shot three men, two of whom died and one of
whom was paralyzed. The court upheld the jury's verdict for the plaintiff. In
discussing whether the officer was acting under color of state law, despite
conduct that "overstepped the bounds," the court highlighted two factors: first,
that the officer intervened in the dispute pursuant to a duty imposed by police
department regulations, and, second, that a city inquiry had concluded that the
officer had acted in the line of duty. See 522 F.2d at 440-41. Plaintiffs here
point to the similar Puerto Rico policy that officers are always on duty, see note
1 supra, and note that Suarez received State Insurance Fund (SIF) approval for
treatment for psychological trauma shortly after the Zambrana incident.
Although there appears to be equivalence with Stengel on the duty to intervene,
the cases are less similar on the latter point. Not only is the record unclear as to
whether Suarez's referral to the SIF was specifically linked to this incident, see
District Court Opinion at 16, but there is no explicit determination by the police
department that the officers' conduct was in the line of duty

11

A criminal motive would not, of course, necessarily negate a finding that the
conduct was under color of state law; the officers could be deemed state actors
even when abusing the positions given to them by the state. See Martinez, 54
F.3d at 986 (quoting West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101
L.Ed.2d 40 (1988))